Domestic Assault, Reporting Requirement Under 2 FAM 272, and a Troublesome Comma

Posted: 4:22 am ET
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This is a grievance case about a domestic assault, an arrest, and a punctuation:

Grievant is a tenured FP-02 Financial Management Specialist, employed by the Department of State as a Regional Financial Management Officer at the REDACTED at the Executive Office of the REDACTED. He has been employed by the Department since 1997, serving both overseas and domestically.

On June 29, 2013, grievant was arrested in REDACTED on a charge of domestic assault against his wife. Grievant’s former wife reported this arrest to the Department; however, when grievant’s current spouse told authorities that the incident was a misunderstanding, the charges were dropped on July 22, 2013. On August 6, 2013, the Department of Diplomatic Security (DS) obtained a copy of the arrest report and began investigating grievant’s failure to report the incident.

DS issued a Report of Investigation (ROI), dated January 14, 2014 and on December 12, 2014, the Director of the Office of Employee Relations (HR/ERCSD) notified grievant of a proposal to suspend him for a period of five (5) calendar days without pay on a charge of Failure to Follow Policy, citing 12 FAM 272. Grievant submitted a written response to the proposal on February 20, 2015, claiming that he did not realize that he had to report the arrest because the regulation is not clear. In any event, he claimed, the arrest was reported by his ex-wife and the charges were dropped within weeks of the arrest. Finally, he claimed that the penalty was too harsh, in light of his confusion about the mandate. After reviewing grievant’s response, the Deciding Official concluded that grievant knowingly failed to report his arrest immediately after it occurred and that he was on notice of his obligation to report the arrest, both because of the “clarity” of the regulation and because grievant had previously made a mandatory report under this same provision in 2010. In the end, the Deciding Official did not credit the reasons offered by grievant and sustained the charge on April 3, 2015.

Grievant argues that the wording of 12 FAM 272 is “far from clear.” He contends that the Department’s construction of the regulation is unfair because it relies on either removing or ignoring punctuation that totally changes the meaning of the provision.

12 FAM 272 states in pertinent part:

b. Employees must immediately report information of a potentially . . . derogatory nature . . . concerning their . . .

(2) Adverse involvement with law enforcement agencies to include:

(a) Arrests, other than minor traffic violations, for which a fine or forfeiture of $150 or more was imposed, or
(b) Arrests for “driving under the influence” [DUI] or “driving while intoxicated [DWI].

c. Arrests must be reported in a timely fashion (i.e., within 72 hours) and must not be delayed pending the conclusion of any judicial action.

[…]
The Department argues that 12 FAM 272 b should be interpreted to require disclosures by cleared employees of any and all arrests, including two traffic offenses — DUI and DWI. The only exception to this rule of mandatory disclosure, according to the Department, is that an employee is not required to disclose “minor traffic violations for which a fine or forfeiture of $150 or more is imposed.”

The agency contends that this regulation required grievant to disclose the fact of his arrest for domestic assault because it was not for a minor traffic violation. The Department concedes that “the specifics of 12 FAM 272(b) could be more precisely worded,” and “the wording of 12 FAM 272(b) could be improved,” but insists that grievant had sufficient notice that he was  required to report his arrest. The Department lastly argues that under both sections 272 b and 272 c, grievant should have reported his arrest immediately, that is, within 72 hours of his “adverse involvement with law enforcement.”

Here is the full section of the Foreign Affairs Manual:

12 FAM 272  REPORTING ADVERSE FINANCIAL SITUATIONS AND CERTAIN ARRESTS
(CT:DS-143;   02-12-2009)

a. Employees should use good judgment and discretion in recognizing and avoiding situations and/or behavior that would call into question their judgment, reliability, and trustworthiness to safeguard information and to hold a position of trust and responsibility.

b. Employees must immediately report information of a potentially derogatory nature to the Director, Office of Personnel Security and Suitability (DS/SI/PSS) concerning their:

(1)  Wage garnishments, credit judgments, repossessions, tax liens, bankruptcies, and/or intentions to file for bankruptcy; or

(2)  Adverse involvement with law enforcement agencies to include:

(a)  Arrests, other than minor traffic violations, for which a fine or forfeiture of $150 or more was imposed; or

(b)  Arrests for “driving under the influence” or “driving while intoxicated.”

c.  Arrests must be reported in a timely fashion (i.e., within 72 hours) and must not be delayed pending the conclusion of any judicial action.

d. Employees with information they believe may have a bearing on another individual’s eligibility for access to classified information, as listed in 12 FAM 233.2, should report that information to the Director, DS/SI/PSS.

e. Reporting pursuant to this section should be in writing and directed to the Director, DS/SI/PSS, and may be either faxed to (571) 345-3191 or sent by mail to DS/SI/PSS, Attn: Director, 11th floor, SA-20.  Reports may also be emailed to DSDirectorPSS@state.gov.

f.  Cleared contractors must report information listed in paragraphs b, c, and d of this section to the Industrial Security Division (DS/IS/IND).  See 12 FAM 576.4 for additional adverse information reporting requirements.

The FSGB disagrees with the Department interpretation:

The critical language is “[a]rrests, other than minor traffic violations, for which a fine or forfeiture of $150 or more was imposed. . . .” The Department argues that this language should be interpreted as if the second comma were not there. That is, the agency would have us read the provision to require disclosure of: “(a) [All] arrests, other than minor traffic violations for which a fine or forfeiture of $150 or more was imposed. . . .” We find that while this may have been what was intended, the first rule of statutory construction is to give the words of the enactment their plain and ordinary meaning, presumably as punctuated, unless there is a clear contrary intent expressed.
[…]
We conclude that whatever the intent of the drafters, a clear delineation of what arrests are required to be reported was not captured in the language of the section 272 b(2)(a). We also conclude that both parties’ interpretations leave serious questions about which arrests were intended to be disclosed and which ones did not have to be reported.

12 FAM 270 was last updated on March 9, 2015.

Read the FSGB case below:

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Senator Grassley Eyes Linda Howard Case, Seeks Answers on TIP Policy and @StateDept Employees

Posted: 1:45 am EDT
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On October 20, 2011, State/OIG issued a report entitled Audit of Bureau of East Asian and Pacific Affairs Compliance with Trafficking in Persons Requirements (AUD/IP-12-02 – pdf). The audit found that Department employees were not uniformly aware of key matters relating to Trafficking in Persons (TIP), including what constitutes TIP activity, the penalties for TIP violations, and where to report allegations of violations. The OIG report notes that although the Department’s code of conduct prohibited employees from acquiring a commercial sex act and using forced domestic labor, it did not specifically address TIP or require employees to report suspected TIP violations.

Based on the report’s findings, OIG made four recommendations to State’s J/TIP. Of these four recommendations, OIG closed Recommendation 3 on July 23, 2013, based on the Department’s decision to designate OIG to receive reports of TIP violations. However, according to its follow-up report of September 2015 (pdf), the other two recommendations —  enclosure of the U.S. Government’s TIP policy in the Department’s Foreign Affairs Manual (FAM), and an expanded code of conduct for employees to cover conduct with respect to TIP activities — remained open.

State/OIG concludes that “by not implementing the recommendations or J/TIP providing an acceptable alternative to fulfill the intent of the open recommendations, the Department is not well-positioned to hold employees accountable for violations of TIP or ensure TIP policies and requirements are understood and followed.”

We missed this — but in September when State/OIG released the follow-up report(officially called Management Assistance Report) related to TIP, Senator Chuck Grassley also fired off a letter to Secretary Kerry asking questions sepcific not just to the OIG report but also the Linda Howard case (see Ex-State Dept Employee Settles Housekeeper’s Claim Over Slavery and Rape).

According to Senator Grassley’s letter, the Howard case “raises questions about the Department’s commitment to holding itself to the same standard by which it judges other countries in assessing their compliance with anti-trafficking standards in its annual TIP report.” Hey, we made it to the footnotes!

Screen Shot 2015-11-15

(click image to read the Grassley letter or click 2015-09-17 CEG to State (Trafficking in Persons)

Among the questions Senator Grassley asked Secretary Kerry are the following:

  1. Regarding the two TIP-related OIG recommendations that remain outstanding since 2011:
    1. Why did the Department fail to implement these recommendations?
    2. Who is responsible for the failure to implement them?
    3. Was former Secretary Clinton or any of her aides including Cheryl Mills, HumaAbedin, or Jake Sullivan informed of any of these recommendations, decisions, or findings? If so, please provide all related records, including emails. If the Secretary and her senior staff were not informed, please explain, why not.
  2. How does the Department ensure that its foreign service officers treat the domestic workers they hire or sponsor in accordance with the TVPA?
    1. As of the date of this letter, how many domestic workers are employed by Department employees worldwide?
    2. Do Department employees stationed abroad need to obtain approval from the Chief of Mission, the Regional Security Officer (RSO), or any other Department official before recruiting and hiring domestic workers? If so, whose approval is needed and what controls exist to ensure the security and safety of those workers as well as national interests? If not, why not?
    3. Is there an independent and confidential reporting mechanism by which these domestic workers may file a complaint with the Department for alleged abuses by Department employees? If not, will you consider adopting such a mechanism?
    4. Do you think implementing OIG’s 2011 recommendations would help Department employees identify and report suspected instances of TIP violations that may be occurring within their own ranks and housing complexes?

The senator is also asking questions specifically related to the State Department’s handling of the Howard case including:

— Did DS or the Department refer these allegations to any other entity, such as the OIG, or any other law enforcement agency? If so, on what date and to whom?

— At any point in time, was Under Secretary of Management Patrick Kennedy, who oversees DS, apprised of any of the allegations, decisions, findings, or news reports relating to Linda Howard or Russell Howard? If so, when, and what was his response? Please provide all related records, including emails. If not, why not?

— At any point in time, was former Secretary Clinton or any of her aides including Cheryl Mills, Huma Abedin, or Jake Sullivan informed of any of the allegations, decisions, findings, or news reports relating to Linda Howard or Russell Howard? If so, please provide all related records, including emails. If not, why not?

There is an FSGB grievance case (read online) that may or may not be related to the Howard case (names have been redacted) but the timeframe and circumstances appears similar, and it looks like DOJ declined to prosecute the case in 2011:

REDACTED (grievant) is a twenty-year Foreign Service employee of the Department of State (Department, agency). While assigned to the U.S. Embassy in REDACTED, she and her husband, an REDACTED national, were the subjects of a Bureau of Diplomatic Security (DS) investigation based on allegations by a household worker of sexual abuse and related crimes. This investigation began in June 2009 and ended with a declination of prosecution by the Department of Justice (DOJ) in March 2011.1 Grievant agrees that she curtailed from post in June 2009 for unrelated reasons.

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Senior FSO Solicits Favorable Comments From Subordinates, Wants GSO “To Grow a Pair”

Posted: 1:53 am EDT
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An unnamed senior FSO solicited favorable statements about herself from her subordinates and in an email to her supervisor, the DCM, made disparaging remarks that the General Services office “needs to grow a pair.” Both made it to the FSO’s evaluation report which became the subject of a grievance case before the Foreign Service Grievance Board (FSGB Case No. 2014-029).

The FSGB decision: Grievant, has failed to show by a preponderance of evidence pursuant to 22 C.F.R. §905.1 that her 2013 Amended EER documenting her performance while serving as Principal Officer/Consul in contained inaccuracies, omissions, errors, or falsely prejudicial information to such an extent that it must be expunged in its entirety. The appeal is denied in part and granted in part, but only for a remand with instructions to delete one phrase in the Amended EER. No other relief is granted.

Excerpt below:

Grievant is a Senior Foreign Service Officer, class of Counselor (FE-OC). She appeals the Department’s partial denial of her grievance in which she seeks the following relief: expunction from her Official Performance File (OPF) of her 2013 Amended Employee Evaluation Report (EER); extension of her time-in-class by one year; and a reconstituted 2014 SB to consider her file, if in fact she was low-ranked by the 2014 Promotion Board based upon her 2013 Amended EER.

Grievant joined the Foreign Service in 1987 as a Political Officer, and has had tours both overseas and in Washington. She has served in a variety of increasingly senior positions, including Deputy Chief of Mission (DCM)/Charge d’affaires in [REDACTED] Principal Officer in [REDACTED]  and Special Advisor to the Assistant Secretary in the [REDACTED] Bureau in Washington. The recipient of a number of awards throughout her career, she was also recommended for Performance Pay while serving as Principal Officer/Consul General in [REDACTED]. Grievant describes herself alternatively as “autistic” and a person who suffers from a disability known as Asperger’s Syndrome (a condition on what is known as the autism “spectrum”).

The contested statements concern two incidents, the basic facts of which are not in dispute and are summarized below. One incident involved grievant’s solicitation of favorable statements about herself from subordinates. The other incident arose from a remark grievant made to her rater, expressing grievant’s views of her own colleagues and using language that the rater deemed inappropriate.

The Solicitation of Statements from Subordinates. The first incident arose when grievant asked her locally-engaged (LE) assistant to gather from other LE staff written statements in which staff would describe what they liked about grievant, or how they viewed her as a boss. On December 15, 2012, grievant sent an email to her LE assistant asking that “each employee who is able or wants to do so” submit something written stating “if they liked working for me or something they liked about me as a boss.” Grievant asked her assistant (REDACTED) to compile such favorable comments for presentation to the grievant at the time of grievant’s upcoming birthday. In this email, grievant characterized the employee statements as “a gift I can keep with me always.”

When the DCM learned of grievant’s actions, she accused grievant of soliciting a gift from subordinates. The DCM issued a Letter of Admonishment to grievant, citing the email of December 15, 2012 to [REDACTED] asking for a “gift” from subordinates on the occasion of grievant’s birthday.2 In the Letter of Admonishment, the DCM instructed grievant to rescind that request. In an email of January 14, 2013, the DCM transmitted to grievant a copy of the Letter of Admonishment, directing grievant to comply with the instructions in the Letter, and to sign the Letter and return it to her. Grievant responded with a refusal to implement the instructions.

Grievant’s Remarks About Colleagues. The second incident concerns an email grievant sent to the DCM in preparation for a visit by the Secretary of State of [REDACTED]. Locally-engaged [REDACTED] staff would be coming to  [REDACTED] to support the visit. The scarcity of hotel rooms or accommodations for them became a pressing issue. In an email of August 6, 2012, to the DCM, grievant expressed her frustration that [REDACTED] American management staff, the Management Officer, and the General Services Officer (GSO), were not doing enough to secure such accommodations. Grievant wrote, in pertinent part:

For months and even during the current pre-advance, I have been trying to get the people to focus on finding hotel space or working with the government to find hotel space for the support staff. They refused to do so. Instead, they are living under the fantasy that they will be able to force the USG, with less than a month to go, to accredit FSNs as members of the US delegation and they will be able to stay with other members of the US delegation on .

Both you and I know that the USG is not going to accredit FSNs. If you are not accredited, you are not going to sleep on . Even if they want to continue to entertain this fantasy, check out hotels as a plan B. However, MGT says they have a plan B – staying in the Consulate’s non-existent TDY housing (LOL), bunking with Consulate officers (NO!), or sleeping through the night at the Consulate (H$*# to the No!).

One problem is that when the American officers broach the subject with FSNs, the FSNs refuse to look at hotel options, because the FSNs want to be accredited. GSO needs to grow a pair.

The appeal is granted in part and denied in part. Pursuant to the Board’s findings, the sole form of relief granted is that the case is remanded to the Department with instructions to make two modifications to the Amended EER. One, the Department is hereby ordered to delete the words “gift of” in every place in which the Amended EER contains the phrase “gift of positive statements from her direct reports.” Second, the Department is hereby ordered to delete from the section on “Interpersonal Skills” the phrase “and in doing so, did not set the standard for integrity.”

Read in full: 2014-029 06-11-2015 – B – Decision_Redacted (pdf).

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No Comparator Case For DS Agent With PTSD — Failure to Follow Regs, Lack of Candor Charges Came 2 1⁄2 Years Late

Posted: 3:12 am  EDT
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This is a case of a DS Agent charged with lack of candor and failure to follow regulations for incidents that took place in 2010 related to his PTSD.   The State Department issued a final decision to  suspend the agent for 12 days.  According to the ROI, the deciding official at the agency level grievance “also considered the mitigating factors and gave grievant credit for having no past formal disciplinary record and a satisfactory work history. The deciding official also noted grievant’s potential for rehabilitation, while recognizing that grievant clearly was embarrassed by his diagnosis of PTSD, and feared that he might be stigmatized by the label, or that he might even lose his job with the Department.”

A couple things striking about this case.  Following grievant’s military service in Iraq in 2006, he started having panic attacks and severe anxiety, for which he was prescribed several medications – none of which he says worked very well. His symptoms became worse over time. In 2009 he was diagnosed as having Post Traumatic Stress Disorder (PTSD).  The incidents that ultimately led to the two charges occurred in November 2010; yet the Department did not propose disciplinary action until April 24, 2013 – a span of 29 months. The ROI does not explain the delay.

Grievant reportedly denied during the interviews with that he had been diagnosed with PTSD, saying instead that he had been treated for anxiety and panic attacks. And yet, according to the ROI, grievant avers that “he discussed his PTSD diagnosis in considerable detail with the DS investigators, and authorized release of his medical records.”

Grievant admits he did not comply with Department regulations requiring him to report that he had been prescribed psychiatric medications, but claims he was unaware of the policy requiring him to do so. He claims that he was not alone in being unaware of this requirement, as many other DS officers to his knowledge were also unaware of the regulation.

Since grievant is a DS agent, the Department has also cited 12 FAM Exhibit 023 2.5, its Deadly Force and Firearms Policy (which we can no longer read online, as it’s now behind the firewall). 12 FAM Exhibit 023 section 2.5 12 FAH-9 H-030 appears specific to prescription medication.  The State Department showed, and the FSGB agreed that there are no similar cases that presented the same set of circumstances as in this grievant’s case.

The Board held that grievance be granted in part and denied in part. The Board remanded the case to the Department to consider an appropriate penalty in view of their decision not to sustain two specifications of one of the two charges.

Summary:

Grievant faces two charges – Lack of Candor and Failure to Follow Regulations – that were leveled against him because of statements he made during a Department investigation about incidents that took place while he was in the U.S. on leave in 2010. He is a Diplomatic Security Special Agent who was admitted to the hospital on two occasions (on consecutive days) after he drank alcohol heavily and took an unknown quantity of prescription medications after he became upset about the breakup of his engagement to be married. The investigation revealed discrepancies between the information grievant gave to investigators and that found in his medical records. Records show that grievant suffers from PTSD and that he had not reported this fact to the Department. The investigation report claims that grievant denied during interviews that he had ever been diagnosed with PTSD or that he was ever in a treatment program to address the condition. His records also show that he had been prescribed several psychiatric medications, and contained no evidence that grievant had reported to the Department either the PTSD diagnosis, or the prescription medicines which are required to be reported under the agency’s Deadly Force and Firearms policy. The Department’s final decision provided for a 12-day suspension without pay.

Grievant denies the majority of the specifications cited in the charges. He claims to have discussed his PTSD diagnosis in detail with the investigators and avers that he responded candidly to all of the questions posed to him during two DS interviews. He admits that he did not report the prescription medicines, but argues that he was unaware he needed to do so. Grievant also claims that the charges are untimely, having been brought after a very long delay – nearly 2 1⁄2 years after the incidents, and that the delay has prejudiced his ability to present his case. He claims to have been particularly disadvantaged in that he is unable to find witnesses who could corroborate his positions or shed light on the quantity of medications he took prior to the 2010 incidents. He also argues that the proposed penalty, in any case, is overly harsh in light of penalties the Department has imposed for like offenses. He requests that those charges/specifications the Department is unable to establish should be overturned, and the 12-day suspension should be mitigated.

Click on the image or the link below to read ROI in pdf file. The file is redacted and originally published online by the Foreign Service Grievance Board.

2014-020 - 04-29-2015 - B - Interim Decision_Redacted-2-02

FSGB Case 2014-020 – 04-29-2015 – B |DS Agent – PTSD Case                         (click image to read in pdf)

2014-020 – 04-29-2015 – B – Interim Decision_Redacted-2

The regs apparently say that “a DSS Special Agent who is taking prescription medication to notify his supervisor and submit a medical certificate or other administratively acceptable documentation of the prescription … to the Domestic Programs Division of the Office of Medical Services immediately after beginning the medication.” We don’t know what happens to DS agents who self report as required by regulations.  Are their USG-issued weapons removed? Are they subject to reassignment? Is there a perception that this is an embarrassment?

Given that many Diplomatic Security personnel have now done multiple tours to war zones and high threat posts, is this really an isolated case of not self-reporting both the PTSD diagnosis and the use of prescription medication?

We sent this individual to Iraq in 2006. He came back with unseen wounds. And here he is in 2015, still fighting his battle.   What can the State Department do to make employees with potential PTSD less fearful of being stigmatized in coming forward and acknowledging they need help? What can the Bureau of Diplomatic Security do more for its agents? How can this be made into a less lonely fight?

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The Cautionary Tale of Raymond Maxwell: When the Bureaucracy Bites, Who Gets The Blame?

— Domani Spero
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Last week, we posted a Snapshot: State Dept Key Offices With Security and Related Admin Responsibilities and wondered why Raymond Maxwell’s former office as Deputy Assistant Secretary at the NEA Bureau did not get an organizational box. Our readers here may recall that Mr. Maxwell was one of the bureaucratic casualties of Benghazi.  Diplomatic Security officials Eric Boswell, Charlene Lamb, Steve Bultrowicz and NEA official, Raymond Maxwell were placed on paid administrative leave on December 19, 2012 following the release of the ARB Benghazi Report. On August 20, 2013, all four officials were ordered to return to duty. Mr. Maxwell officially retired from the State Department on November 30, 2013. Prior to his retirement he filed a grievance case with HR where it was denied and appealed the case to the Foreign Service Grievance Board where it was considered “moot and thus denied in its entirety.”

Our blog post last week, also received the following comment from Mr. Maxwell:

“[M]y grievance was found to have no merit by HR, and earlier this month, the FSGB found that the State Department made no errors in the way I was removed from my position, shamed and humiliated in the press, and placed on admin leave for nine months, Further, the FSGB found that I was not entitled to the public apology I sought in my grievance because I had retired. I have two options now. I can spend a great deal of money suing the Department in local courts, or I can let it go and move on with my life. My choice of the latter option neither erases the Department’s culpability in a poorly planned and shoddily executed damage control exercise, nor protects future foreign service officers from experiencing a similar fate. There is no expectation of due process for employees at State, no right to privacy, and no right to discovery.”

We spent the weekend hunting down Mr. Maxwell’s grievance case online; grievants’ names are redacted from the FSGB cases online. When we finally found it, we requested and was granted Mr. Maxwell’s permission to post it online.

The Maxwell case teaches us a few hard lessons from the bureaucracy and none of them any good. One, when you fight city hall, you eventually get the privilege to leave the premises. Two, when you’re run over by a truckload of crap, it’s best to play dead; when you don’t, a bigger truckload of crap is certain to run you over a second or third time to make sure you won’t know which crap to deal with first. But perhaps, the most disappointing lesson of all — all the good people involved in this shameful treatment of a public servant  — were just doing … just doing their jobs and playing their roles in the proper functioning of the service. No one stop and said, wait a minute …. They tell themselves this was such a  sad, sad case; they feel sorry for how “Ray” was treated. It’s like when stuff happens, or when it falls — se cayó. No one specific person made it happen; the Building made them do it. The deciding officials apparently thought, “This was not an easy matter with an easy and obvious resolution.” Here — have a drink, it’ll make you feel better about looking the other away.  See he was “fired” but he wasn’t really fired.  He was prevented from entering his old office, and then not really. Had he kept quiet and did not write those poems …who knows, ey …

We’re embedding two documents below –1) Maxwell’s FSGB case, also available online here (pdf); and 2) an excerpt from the Oversight Committee report that focused on Mr. Maxwell’s  alleged “fault” over Benghazi. Just pray that this never happens to you.

 

 

Below excerpted from the House Oversight Committee report on ARB Benghazi:

 

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CyberSecurity Month PSA: Installing Mozilla Firefox Could Be Hazardous To Your Career …

— By Domani Spero

On September 30, President Obama proclaimed October 2013 as National Cybersecurity Awareness Month.  In light of that proclamation, we’re highlighting a grievance case by a Foreign Service officer who downloaded and installed the Mozilla Firefox browser which potentially cost him a promotion.  The State Department proposed to issue him a Letter of Reprimand. The officer filed a grievance challenging the issuance of a Letter of Reprimand. For relief, he asks that the decision to impose discipline be rescinded and the discipline letter be removed from his Official Personnel File (OPF). In addition, he requests that the 2011 Selection Board’s decision to promote him be given immediate effect, and that he be reimbursed for attorney’s fees. The Department denied his grievance on March 13, 2012. He appealed that decision to the Foreign Service Grievance Board on May 14, 2012.  On December 2012, the Board found that grievant’s argument was without merit and sustained the proposed discipline.

This case is available publicly (pdf) from the newly relaunched fsgb.gov.  (BTW, the site is now searchable, yay!) As far as we are aware, the State Department still only allows two browsers for official use — Internet Explorer and more recently during Secretary Clinton’s tenure, Google Chrome was approved for department-wide use.   According to the browser stats maintained by w3schools.com, Internet Explorer’s downward use continues to hover around 12% in 2013, while Chrome continues to climb above 50 percent. Firefox’s usage remains at around the 27% mark.

Now some details on this case extracted from the record of proceeding:

Grievant, an FS-03 Officer, installed a software application, Mozilla Firefox Browser, on his workstation in August 2010. Grievant admitted that he installed the software because he was concerned that his savings accounts may have been the subject of identity theft and he wanted to check his credit union account on-line with what he thought was a safer web browser. The Mozilla software was found to be an executable application so that by downloading it grievant violated the Department’s Cyber Security Policy, and such action could have led to disruption of the Department’s cyber infrastructure. Grievant argued that he was unaware that the Mozilla Browser was an executable file when he installed it, and therefore, did not have the intent to violate the policy. The Board found that grievant’s argument was without merit and sustained the proposed discipline.

Anyone with questions about executable files should check the list here and best consult post’s information systems security officer (ISSO).

Also it might not be bad to get acquainted with 12 FAM 590 CYBER SECURITY INCIDENT PROGRAM if you haven’t already.

The government’s charge:

The Department charged the grievant with violating the directives and procedures for Cyber Security contained in 12 FAM 592.2b 8. The charge is based on grievant’s action in downloading the Mozilla Browser on his workstation on August 9, 2010. A revised cyber security program was implemented in 2007 throughout the Department. The Department asserts that grievant’s failure to comply with the cyber security policy could have resulted in damage or risk to the Department’s cyber infrastructure. The Mozilla Browser could compromise the integrity of the system and introduce a virus or malicious code.

Grievant was informed on December 22, 2010 by the Bureau of Diplomatic Security that the installation of the Mozilla Browser by him was a violation of the regulation. Grievant was further advised that the violation determination would be forwarded to the Bureau of Human Resources. Grievant was advised of his right to appeal the finding of a violation by the Bureau of Security, but chose not to do so. He did submit a Statement of Understanding acknowledging receipt of the December 22, 2010 letter and the Department’s security policies.

The Department dismisses grievant’s argument that his action in downloading the Mozilla browser required “mens rea” or a ”deliberate” act on his part to download an application that he knew was not authorized for installation. In his view, the Department has failed to prove that he made such a deliberate decision. He asserts that he did not actually know that the software was not authorized, and that his actions were inadvertent. He explains that he was ignorant that the software was an executable application that was not authorized. He states that he “lacked the knowledge of the difference between a search engine website and web browsing software.” He contends that the Department’s decision to not charge him with the downloading of the Shockwave program demonstrates that his action was not deliberate.

The FSO’s defense and argument:

Grievant has admitted that he installed Mozilla to assist himself with issues concerning his personal savings accounts. He could have used his personal computer to deal with the “spoofing” problems he was having with the possible identity theft matters. Finally, grievant should have reported the “spoofing” problems to the ISSO and checked with that office to determine if he could download Mozilla.

Grievant asserts that the proposed Letter of Reprimand should be rescinded because he lacked the intent necessary to violate the regulation. In 2009 – 2010, grievant was the victim of identity theft. He lost several thousand dollars to the thief, had to cancel his credit cards on two occasions, and was informed that his medical records were among those stolen from an Office of Medical Services database. On August 9, 2010, he received on his agency email four “spoofing” messages purporting to be from his credit union and his retirement fund.

Grievant was concerned that his savings accounts might have been stolen and his Department computer may have been compromised. He installed the Mozilla Firefox browser on his workstation instead of other browsers, such as Google, because he thought that Mozilla was a safer web browser. He was quickly informed by ISSO that Mozilla was not allowed to be downloaded on the Department’s system since it was an executable file. Grievant explained his concerns about his savings accounts and the reason that he downloaded the browser. He stated on several occasions that he did not know Mozilla was an executable file in violation of the regulation, and believed it to be a secure web-based browser. Grievant apologized and accepted responsibility for what he believed was an “inadvertent download of an executable file”.

Grievant argues that he should not be disciplined for downloading the Mozilla browser. In his view, the Department must show that it was his conscious object to download an executable file on to the Department’s network. He admits that his action was prohibited by the FAM, and that he exposed the Department to serious risk by downloading the browser on his workstation. However, he argues that the FAM requires specific intent to violate the regulation, which he did not have when the downloading took place. Grievant argues only deliberate acts, not negligent ones, are punishable under the regulation. He believes it is unjust to punish “a deliberate act that was believed would cause only a permissible result.” His action was negligent and he acted out of ignorance believing Mozilla to be a web based application rather than an executable file. In essence, he states that he believed that he was doing nothing more than accessing a website and that he lacked the knowledge required to make his action of downloading a deliberate violation of the regulation.

Grievant is remorseful and admits that he is fully responsible for his action. He did not know that he was downloading an executable file, and lacking that knowledge he did not have the mental state required by the regulation. Among other things, grievant asks that the decision to impose discipline be rescinded and the Letter of Reprimand be removed from his OPF. In addition, he asks that the Department give immediate effect to the 2011 Selection Board’s decision to promote him.

The FSGB was not persuaded:

Grievant intended to install Mozilla on his workstation. He engaged in a deliberate act. The fact that he was ignorant that it was an executable file in violation of the regulation does not obviate or lessen his culpability. As the Department points out, his action could have resulted in damage or significant risk to the Department’s cyber infrastructure, which could have caused major disruptions and loss of sensitive information. His admitted ignorance or lack of knowledge about Mozilla being an executable file does not excuse his action or his culpability for that action.

This is grievant’s first incident of any kind that caused him to be disciplined. As noted, his record is one of success and accomplishment. Grievant believes that discipline in this case is unjust. However, the proposed Letter of Reprimand is consistent with the penalties imposed in prior cases, and is reasonable under the facts of this case.

One related item, the agency’s cybersecurity was most recently in the news with a BuzzFeed exclusive report that the State Department Lacks Basic Cybersecurity. The report alleges that  “the State Department cable and messaging system, built and maintained — like the troubled ObamaCare system — mainly by large IT contractors, has routinely failed to meet basic security standards.” It further alleges that “There is hackable backdoor access to servers and the potential for spillage of classified information in the unclassified enclave.”  BuzzFeed says that it has  internal docs although those do not appear to be posted online at this time.  Read more here.

* * *

Joan Wadelton’s Appeal Makes it to FSGB 2011 Annual Report to Congress

In May, we posted about the case of FSO Joan Wadelton from Patricia Kushlis’ troubling blog post (see Joan Wadelton’s Case: That’s One Messy Promotion Scorecard, Next Up – It’s GAO Time!).  Ms. Wadelton’s case made it to the FSGB’s 2011  Annual Report to Congress:

Appeal of Joan Wadelton. On January 7, 2011, Joan Wadelton, a Foreign Service Officer with the Department of State, filed a Complaint in the District Court for the District of Columbia, asking that it review the Board’s decision resolving a 2008 grievance appeal. Ms. Wadelton had filed three grievances prior to the 2008 appeal contesting the results of six selection boards which had not promoted her. As a result of those grievances, all six boards were reconstituted and Ms. Wadelton’s file was again reviewed for promotion. None of the six reconstituted boards promoted her. Ms. Wadelton then challenged the results of the reconstituted boards in the 2008 follow-on grievance. In its decision, the Board found deficiencies and irregularities in the operations of all six reconstituted boards, rebutting the presumption that they were conducted with regularity, and ordered that six new reconstituted selection boards be convened. Ms. Wadelton’s complaint challenges the Board’s decision to order a new round of reconstituted boards, rather than direct a promotion, as she had requested.

So Ms. Wadelton contested the results of the six selection boards, and State reconstituted all six boards.

Then Ms. Wadelton challenged the reconstituted boards, and FSGB ordered State too reconstitute six new selection boards.

The Grievance Board “found deficiencies and irregularities in the operations of all six reconstituted boards” so it ordered State, that is, the same HR Bureau to reconstitute six new selection boards.  Because that makes a lot of sense. It did not say if the deficiencies and irregularities were isolated to these six reconstituted boards or if they are systemic to the bureau and the process.

Hopefully the new boards are better at math so the promotion scorecards won’t be as messy, yes?  Or maybe, since this is now a case in the District Court for the District of Columbia, we’ll hear much more about the perplexing promotion scorecard process and how they get so messy.

Domani Spero

 

 

Senior Diplomat Disciplined for Volatile Behavior Cites PTSD in Grievance Case, Fails

A Senior Foreign Service Officer with over 21 years of Foreign Service experience was serving as an Office Director when he was disciplined for repeated violations of the Department’s Policy on Violence and Threatening Behavior in the work place.  The FSO filed a grievance contending that the five-day suspension as unreasonable (also includes loss of pay, and a discipline letter being placed in his Official Personnel File for two years).

The FSO in his grievance filing also cites as one of the mitigating factors a link between his anger and inappropriate language at the workplace, symptoms of Post Traumatic Stress Disorder (PTSD) and adaptation disorder as a result of his service in a Provincial Reconstruction Team. The grievance appeal was denied.

Goya – The Disasters of War | Plate 65: Spanish: Qué alboroto es este? English: What is this hubbub? (wikipedia)

From FSGB Case No. 2011-004 dtd. August 19, 2011:

HELD: The Department carried its burden of proof in deciding to discipline grievant, a Senior Foreign Service Officer charged with inappropriate conduct, for five days. Grievant failed to prove that he suffered from Post Traumatic Stress Disorder (PTSD), which he asserted was responsible for his repeated violations of the Department’s Policy on Violence and Threatening Behavior in the work place.

SUMMARY: Grievant, a Senior Foreign Service Officer, was Office Director in the Bureau of [REDACTED] when he was charged with one count and seven specifications of inappropriate conduct in interactions with his staff and others. The charge and specifications include, for example, repeatedly referring to women as “bitches” and “hormonal,” yelling, banging on his desk and forcefully expressing his political views throughout the office.

A five-day suspension was proposed, to which grievant did not respond, and the Deciding Official sustained the specifications and penalty. Grievant filed a grievance, accepting full responsibility and expressing regret, but asserting, in mitigation, that his one-month suspension from duties (with pay) and the humiliation he suffered before his colleagues already constituted punitive action. He further claimed that, because the charged behavior was completely out of character, he sought mental health counseling and his clinical social worker identified a link between his behavior and PTSD as a result of his earlier service in [REDACTED]. Grievant also argued that a five-day suspension was not comparable to penalties imposed in other similar cases. The Department found no grounds for mitigation and grievant appealed to this Board.

The Board held that grievant knew or should have known the Department’s policy on threatening behavior. As a senior official, grievant did not justify a reduction in penalty based on case comparisons of lower level officers engaged in isolated incidents. Declarations by grievant’s subordinates and colleagues clearly demonstrated that he created a hostile and threatening work environment. Grievant made no claim to being unaware of his behavior and did not defend himself by raising the issue of PTSD or counseling until after the Proposing and Deciding officials issued their letters of discipline. His belated consultation with a clinical social worker to whom he described his behavior appears to be self serving. The social worker did not diagnose grievant with PTSD, but rather stated that based on grievant’s explanations, he was probably suffering from mild PTSD. For seven months after grievant’s return from [REDACTED] he served at the [REDACTED] apparently without incident. He presented no explanation about experiences in [REDACTED] that could have caused PTSD, or testimonials from others at the [REDACTED] or prior to his service in [REDACED] to support his claim that PSTD accounted for his “out of character” behavior afterwards. The Department presented overwhelming evidence that grievant violated its policy against threatening behavior. The penalty imposed by the Department was found to be within the realm of reasonableness.

The grievance appeal was denied.

Domani Spero

Project Recycle: Boss from hell in London is now somebody’s boss elsewhere …

We all have our share of good bosses and we remember them fondly. But we’ve also had our share of bad bosses and we tend to remember them extremely well; probably because bad memories do manage to stand out while good, happy ones are not the sort that make or break us or derail or destroy careers.

We have had a regular round up of bad bosses in this blog largely from the OIG inspection reports and occasionally from the Foreign Service Grievance Board. Why? Because those are the cases that do not ever make it to the State Magazine or the DipNote blog, silly.

We try to be an equal opportunity blogger on these cases, not just on political appointees but also on career diplomats. A terrible political ambassador gets chucked out after a term or two, and the embassy gets a chance to recover with the next go around of appointments. When the boss happens to be a career diplomat and a terrible leader and manager at the same time, well — we hope that the organization actually has a process on how to get him or her to become a better leader, or is it a ten-star leader? No, not just with enrollment at FSI’s “Leadership and Management Training Continuum,” dear me, but in a transformation process or a 12-step program of sorts.

Crystal earth recycle icon

Image via Wikipedia

What we normally would not expect is for Exhibit A for bad behavior to get recycled into other leadership and management roles.  And yet in some cases, that’s exactly what happens. A bad unit chief becomes a section chief. A bad section chief gets a stretch assignment as a DCM.  A bad DCM is rewarded with another DCMship, or even worse gets a Charge d’affaires gig. In a sense, you not only get an example with potentially, demoralizing results, you also get a bad example with a multiplier effect.  And you betcha, the 360 feedback must have all said, they’re all A-ok.

An example is a case of an untenured Consular Officer who received an unsatisfactory EER and was not recommended for tenure by his supervisor (rating official) while serving a tour at Embassy London.  His EER was referred to the Director General (DG) to decide whether the FSO (the grievant) should be separated or given additional time for further performance evaluation.  The DG decided to give grievant an additional six months of performance evaluation.  At the end of the six months, grievant received a very positive EER with a recommendation for tenure, but the DG decided that grievant should be separated from the Service.

Excerpts below from the grievance case (FSGB No. 2009-016) in the FSGB website, publicly available online in the real Internet:

From a co-worker:

During the second day of my assignment [in grievant’s section] I observed      ’s     ’s] supervisor interact with him.  To say it was humiliating and demoralizing, both to him and me would be a gross understatement . . .  came over to ask for [      s] opinion.  Her response was to scream at him; and she never answered the question.  Her comments to me when he walked away were very negative, extremely disrespectful and were clear that she was negatively disposed towards him….  It was difficult for me to understand what she had against him since he worked so hard and contributed so much, but the antipathy was there.  This type of behavior toward  continued during my tenure working in NIV.  Her unprofessional and unstable behavior was evident in her relationships with all of the people she supervised, American and LES.

Another witness writes:

A hostile work environment existed in the non-immigrant visa unit in  under the management of  . . . .  She did not provide regular feedback.  When feedback was provided it was often derisive, given in public, and without effective counsel on the means one could use to improve performance. . . .   often provided conflicting guidance on dealing with visa cases. . . .  When officers asked for clear guidance on cases it was rarely forthcoming.  It was extremely difficult to perform to her vague and changing expectations.    In short, the environment in the NIV unit during my tenure there was not an environment in which entry-level officers were mentored and provided with feedback which enabled them to grow into better officers.  Without guidance on how to improve and in constant fear of attracting the negative attention of  most officers simply marked time in an effort to leave as quickly as possible.

Still another writes:

I have concerns about retribution should my involvement in this grievance come to light.  Mr.      and I did not work for  at the same time, so I cannot speak to their interactions in specific . . . .  However, I would like to note for your records that I found      unable to deal with the task of managing her staff without bias, intimidation, and unprofessional behavior. . . .  She seemed to hold grudges against people without effectively counseling them on her concerns.  Sometimes the grudges were related to a workplace concern and valid, but grudges are not an appropriate way to manage.

From a Locally Employed Staff

[O]ur work environment was unbearable. . . .  Unfortunately [ ’s] more senior managers were unable to reconcile the situation.  Following her departure from post, a locally engaged staff member described the ambience to me as “gophers coming up out of their holes, knowing now they won’t be hit over the head.”

Still another employee writes:

Numerous persons in our office and throughout the mission had their own “ stories,” of her explosive, dysfunctional and abrasive communication and management styles. . . .  Her corridor rep in Emb as someone you best avoided and very very difficult to work with was strong and uncontradicted.

A statement from the Assistant Human Resources Officer in          who reported that:

• Several of s subordinates complained about her “unusually dictatorial style.” • used the EER as a weapon. • used leave approval as a weapon or “punishment.”  • showed a pattern of having “trouble” with junior officers who were older, experienced, previously successful, “not easily intimidated by [her] abrasive style,” and [who] “did not readily submit to her will.”

As if that’s not enough, the FSO’s input of his accomplishments was reportedly “weaponized” in his EER:

In the April 24, Counseling Certificate, the Department notes that the rater gave grievant credit for improving his interaction with the public, including the fact that his tone was friendlier.  He also had some improvements in his case notes.  However, according to the Department, grievant continued to need improvement in time management and writing skills.  The agency further observes that grievant’s rater was particularly concerned with his input on his performance evaluation.  The rater was concerned that grievant wrote about one of his accomplishments:

“[I] spoke civilly to child molesters, murderers, drug peddlers, spouse abusers and other human scum without losing my sense of self worth.”

The Department argues that this quote showed “poor judgment.” Damn, there’s no such thing as a sense of humor, is there?

According to the FSGB, the grievant challenges his rater’s decision to mention his comment to her that he “spoke civilly to child molesters, murderers, drug peddlers, spouse abusers and other human scum without losing my sense of self worth, etc.”  He asserts, without contradiction, that he was using humor in a draft, unofficial document that he was required to give to the rater describing his accomplishments.  He explained that he intended to humorously describe the difficulties he experienced processing the criminal applicants’ portfolio.  Grievant contends that he asked the rater what form to use in submitting his list of accomplishments.  She responded, “Just send me something.  I’ll tell you if I want it done differently.”  Grievant states that instead of advising him that she did not appreciate his humor, she “weaponized it” by putting it in the EER.  Again, the inclusion of the comment, omitting the context, renders it misleading and of a falsely prejudicial character.

The Chief of Visa Services back in Foggy Bottom states the following in the Record of Proceedings:

[     ] would meticulously document her counseling sessions and provide concrete examples to provide constructive honest feedback to the officers.  Those officers who constantly sought to improve their performance therefore held her good opinion in high esteem.

If you read the entire case, you gotta laugh out loud on that one.  The FSGB says:

On the basis of the evidence presented, we conclude that there was a hostile and toxic relationship between grievant and his rater that prevented her from fairly and accurately describing and assessing his performance. We further conclude that the challenged EER does not show balance or fairness.   This Board has held that hostility by a rater can undermine the balance and fairness of an EER.

“Damning with faint praise” is not just a rumor down the corridors.  The Board slams the reviewing officer for wasting space and the alphabet:

The reviewer’s statement is no better.  It consists entirely of negative or neutral comments with the exception of praise for grievant’s willingness to work hard.  The reviewer writes that grievant volunteered for extra work and successfully participated in a task force set up to meet the passport surge and to overcome a backlog of applications.  However, the reviewer writes that grievant was overly concerned that he might miss details or hidden fraud intentions that “slowed his productivity and led to inappropriate delays or refusals.”  The record, however, suggests that productivity was never a concern.  The rater consistently found that grievant was productive, albeit overly concerned with ferreting out fraud.

The FSGB reviewed the comments in the challenged EER and writes:

What is clear is that the document consists largely of negative statements.   The rater largely overlooked grievant’s accomplishments.  For example, the rater failed to mention that grievant had the fifth highest rate of visa application adjudications since of over 17,000 cases.  She failed to mention that grievant won a Meritorious Service Award for his efforts during the passport surge time period.13  She did not mention that he volunteered to be the Consular Duty Officer on five different occasions over the Thanksgiving, Christmas and New Year’s holidays.  Nor did she mention that grievant was selected to accompany the Consul General and the Ambassador to the Home Office.  The rater did not credit grievant with developing a standard operating procedure that allowed domestic U.S. passport applications to be adjudicated remotely overseas.  The rater also did not mention that grievant wrote the annual “J-1 Refusals Analysis Report” that was apparently adopted unchanged, all while he kept up with his normal workload.  Notably, the Department does not contest any of grievant’s claims of accomplishment that occurred during the rating period, but were omitted from the EER.    Instead of writing a balanced report, the rater made one other positive statement, followed immediately by a harshly negative one.

As further proof of his rater’s focused disdain, grievant reports that he was the only member of his unit to be excluded from two Group Meritorious Awards that were given to the section in both and , despite the fact that he had contributed significantly to the reasons for the awards.

In its decision, the Grievance Board finds the EER to be extremely negative and held that the Director General’s decision to separate the untenured FSO be vacated:

We too counted the number of negative lines versus the number of positive lines, weighed the content of the positive and critical comments, and found that the substantial majority of the rater’s and reviewer’s narratives are negative.  This is clearly an unbalanced EER, particularly when it is viewed in conjunction with grievant’s accomplishments during the evaluation period and with his other EERs.

The DG’s Decision Must be Vacated
We have concluded that the EER was of a falsely prejudicial character, imbalanced and therefore must be expunged.  The record suggests that this unsatisfactory EER was the only reason why grievant’s file was sent to the DG for his review.15  It further appears that the DG relied, at least in substantial part, on the invalid EER in making his decision to separate the grievant.  Accordingly, his decision must be vacated because it relied primarily on an invalid evaluation and because there appears to be no other reason presented on this record to support it.  We therefore, do not need to decide grievant’s claim that the decision was arbitrary and capricious.

The DG must then “review all relevant and admissible material on file regarding the candidate’s performance and may “[w]ithhold judgment regarding possible action for a specified period of further on-the-job observation.”  Once the additional evaluation has been received, the DG “will readdress the question [of possible separation] based on overall performance history at that date.”
1) Expunge the  EER from grievant’s file;
2) Insert a gap memorandum in place of the expunged EER;
3) Vacate the decision to separate grievant; and
4) Submit grievant’s current performance file to the next scheduled tenure board for its review.

So that’s good news for the untenured FSO in this case.

And we thought, surely there must be consequences for bad management like this on the part of the supervisor or the dammit with praise reviewing officer who failed to recognize the hostile working environment?

Sure, there is.  The bad boss in London has now been promoted as section chief at a post in a non-EUR bureau.

Swell, just swell.

Now, I can’t even say — don’t be like this boss or you’ll get bitten on your gluteus maximus.  Because see, this one was not/not bitten on her gluteus maximus; just got another higher boss-job elsewhere.

Domani Spero